New Delhi: The Delhi High Court will soon pronounce a historic judgement on a 150-year-old provision in criminal law that has been protecting Indian husbands from marital rape charges.
With the Centre dilly dallying on the matter, the court on Monday put its foot down and refused to delay the verdict any further. Wrapping up a marathon proceeding of 20 continuous days on a batch of Public Interest Litigations (PIL), a bench of Justices Rajiv Shakdher and C Hari Shankar said, “We are closing it.”
The stern statement from the bench came as the Centre once again said it would make its stand clear only after consulting its stakeholders, including all states, Union Territories and the National Commission for Women.
The court said it was prepared to go by the arguments made by the Union Government in an affidavit earlier on similar litigations. Justice Shakdher observed that the court cannot be expected to wait endlessly, just because the Centre was not ready to “bite the bullet”. Calling the Centre ‘Trishanku’ (an ancient Indian king who symbolises the middle ground, or limbo), the high court said, “You have to take a stand this way or that.”
India is one of the 36 countries in the world where marital rape is not criminalised, and India’s rape laws do not apply in cases where the perpetrator is a spouse
A PIL was filed in Delhi High Court in January 2015 by the NGO RIT Foundation and the All India Democratic Women’s Association, seeking criminalisation of marital rape. Statistics say that one in every three women in India between the ages of 15 and 49, who have ever been married, say they have experienced some form of violence from their spouses.
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The court reserved its judgment on the matter on Monday. A decisive executive has to say ‘yes’ or ‘no’, said Justice Shakdher, and added that except for the Centre, all other stakeholders have completed their arguments on the matter. “A decisive executive has to say yes or no. No one stops you from changing your stand…Tell us when you want to start. You argue on law. There are no facts as such in this matter,” he told Solicitor General Tushar Mehta.
The bench took a strong view as there appeared to be no terminal date by when the Centre’s consultations would end. The remarks came after Mehta said that letters to all states and Union Territories had already been sent and their inputs were awaited. Asked by the court if Mehta would like to argue the matter on behalf of the Centre, the SG said as “the issue has very far-reaching socio-legal implication across the country, a meaningful consultative process” was imperative.
On February 7, the high court granted two weeks to the Centre to take a stand on the criminalisation of marital rape. Senior advocates Colin Gonsalves and amicus Rebecca John and Rajshekhar Rao had already argued that there cannot be a differentiation in the matter of dignity whether a woman was married or unmarried, and also asserted that irrespective of marital status, every woman has the right to say ‘no’ to a sexual act.
In January, Justice Shakdher had questioned Delhi government counsel Nandita Rao as to how rape affects the dignity of an unmarried woman but not of a married woman. He raised the question when the counsel told the court that a married woman could seek redressal under section 498A of the Indian Penal Code (IPC). “The relationship cannot put it on a different pedestal. A woman remains a woman,” Justice Shakdher had observed.
